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Articles 1 - 17 of 17
Full-Text Articles in Law
Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn
Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn
Law Faculty Publications
On September 30, 2022, several members of the faculty of the Thomas R. Kline School of Law of Duquesne University presented a Continuing Legal Education program, New Supreme Court Cases: Duquesne Law Faculty Explains, reviewing these developments. Duquesne Law Review graciously invited the faculty panel to contribute their analysis of these cases from the Supreme Court's 2021- 2022 term for inclusion in this symposium issue of the Law Review.
A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone
A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone
Law Faculty Publications
In Kennedy v. Bremerton School District, the Roberts Court continued its move to carve out larger spaces for religious practice and expression in public spheres. But in so doing it left lower courts and school districts with many more questions than answers concerning what the Establishment Clause means and what it requires of them.
The Death And Resurrection Of Establishment Doctrine, Gerard V. Bradley
The Death And Resurrection Of Establishment Doctrine, Gerard V. Bradley
Duquesne Law Review
Lead Article
The biggest news of the Supreme Court's 2021-22 term was the Court's "abandonment" of Lemon v. Kurtzman as the default test for Establishment Clause jurisprudence. For a full half-century, Lemon v. Kurtzman defined what our constitutional separation of church and state meant. But now the Court has definitively laid it to rest. The important question of church-state relations stands at a strategic fork in the road that the Court has not faced since 1962, and perhaps not since 1947. Justice Gorsuch complained that Lemon demonstrably failed as law. That it was a judicial tool that flopped by every …
Analysis Of Carson V. Makin, Wilson Huhn
Analysis Of Carson V. Makin, Wilson Huhn
Duquesne Law Review
Many school districts in the State of Maine lack high schools, so the children in those districts must attend another school selected by their parents.1 In 1873 the State of Maine enacted a tuition assistance program, called "town tuitioning," that offers a stipend to participating schools to partially defray the cost of educating children from districts that lack a high school.2 In 1981 the State of Maine enacted a law that categorically excludes "sectarian schools" from participating in the tuition assistance program.3 The Maine Department of Education defines a "sectarian school" as a school that is both …
"We Don't Know What We Want": The Tug Between Rights And Public Health Online, Jonathan Zittrain
"We Don't Know What We Want": The Tug Between Rights And Public Health Online, Jonathan Zittrain
Duquesne Law Review
Twitter and Facebook boast billions of subscribers, many of whom are real people. The companies are also roundly hated, particularly by tech experts-at least those who follow them for something other than their stock performance.1 Objections to platforms' behavior are commonly expressed as amazement that they could be so obviously and consistently wrong in failing to police awful content their users post. There is also amazement about unobjectionable posts and comments from users that they take down.2 That, in turn, has led to pressure for regulatory initiatives to push the companies into doing what they so clearly ought …
The Tug Between Private And Public Power Online, Evelyn Douek
The Tug Between Private And Public Power Online, Evelyn Douek
Duquesne Law Review
Professor Zittrain's article describes, in his characteristically vivid and engaging way, one of the most consequential tugs of war of the internet age: the battle over the rules for what can and cannot be said online. The legal centerpiece of Zittrain's story is the Skokie case from the late 1970s, which held that Nazis had a First Amendment right to march in a Chicago suburb with a large population of Holocaust survivors.1 Zittrain calls the case "a near-perfect encapsulation of mainstream late twentieth century characterization of the right to free speech in America."2 And he's right-there is perhaps …
Platform Governance's Legitimate Dilemmas, Alicia Solow-Niederman
Platform Governance's Legitimate Dilemmas, Alicia Solow-Niederman
Duquesne Law Review
How can we govern if "we don't know what we want?"1 In characteristically engaging and thought-provoking fashion, Jonathan Zittrain's Essay interrogates our ongoing struggle to answer this thorny question.2 As Professor Zittrain exposes, governing social media firms like Twitter and Facebook is no easy feat.3 Part of the challenge is defining the problem itself: it's hard to diagnose what, exactly, "is so 'obviously' wrong" with social media today.4 Naturally, without a consensus on what is wrong, it is difficult, if not impossible, to make it right.
Talk Should Be Cheap: The Supreme Court Has Spoken On Compelled Fees, But Universities Are Not Listening, Falco Anthony Muscante Ii
Talk Should Be Cheap: The Supreme Court Has Spoken On Compelled Fees, But Universities Are Not Listening, Falco Anthony Muscante Ii
Duquesne Law Review
Taking money from a person to support political and ideological projects with which that person disagrees is, in the words of Thomas Jefferson, "sinful and tyrannical." Public universities are meddling with sin and tyranny by compelling some students to pay mandatory student activity fees in support of political and ideological activities with which those students disagree. This Article provides separate legal and historical backgrounds for both public union dues and fees and the more-recent public university student activity fees to ultimately propose a constitutional system congruent with Janus v. AFSCME, Council 31, and its impact on Board of Regents …
A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone
A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone
Duquesne Law Review
In Kennedy v. Bremerton School District,1 the Roberts Court continued its move to carve out larger spaces for religious practice and expression in public spheres.2 But in so doing it left lower courts and school districts with many more questions than answers concerning what the Establishment Clause means and what it requires of them. Can school districts still protect students from religious coercion by teachers, classmates, and others? Are entanglements between church and state or the appearance of endorsement no longer problematic?3 Should the individual history and tradition of schools and communities influence decision making on …
Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.
Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.
Law Faculty Publications
Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.
In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …
Shield, Sword, Or Trojan Horse? Free Speech As The Court's Modern Weapon Of Choice, Zachary M. Mazzarella
Shield, Sword, Or Trojan Horse? Free Speech As The Court's Modern Weapon Of Choice, Zachary M. Mazzarella
Duquesne Law Review
No abstract provided.
Constitutional Law - First Amendment - Establishment Of Religion, Jennifer Fox Rabold
Constitutional Law - First Amendment - Establishment Of Religion, Jennifer Fox Rabold
Duquesne Law Review
The United States Court of Appeals for the Third Circuit has held that teaching a course in the Science of Creative Intelligence Transcendental Meditation in public high schools is an establishment of religion prohibited by the first amendment.
Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979).
Constitutional Law - First Amendment - Defamation - Public Figures - Discovery - Editorial Process - Privilege, Jerry V. Haines
Constitutional Law - First Amendment - Defamation - Public Figures - Discovery - Editorial Process - Privilege, Jerry V. Haines
Duquesne Law Review
The United States Supreme Court has held that there is no first amendment privilege against discovery into the editorial process of a media defendant in a defamation action by a public figure.
Herbert v. Lando, 441 U.S. 153 (1979)
Constitutional Law - First Amendment - Free Exercise Clause - Establishment Clause - Schools And School Districts, John C. Bates
Constitutional Law - First Amendment - Free Exercise Clause - Establishment Clause - Schools And School Districts, John C. Bates
Duquesne Law Review
The Supreme Court of Pennsylvania has held that inclusion of an invocation and benediction at a public high school commencement, at which attendance was voluntary, violated neither the free exercise clause nor the establishment clause of the first amendment of the United States Constitution nor that section of the Pennsylvania Constitution governing free exercise and establishment of religion.
Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362, cert. denied, 419 U.S. 967 (1974).
Constitutional Law - First Amendment - Right Of Newsmen Not To Reveal Confidential Sources Of Information To A Grand Jury, Ronald Carl Weingrad
Constitutional Law - First Amendment - Right Of Newsmen Not To Reveal Confidential Sources Of Information To A Grand Jury, Ronald Carl Weingrad
Duquesne Law Review
The Supreme Court has held that in a grand jury setting, a newsman's status is the same as that of any other citizen and therefore he must respond to subpoena and answer all relevant questions relating to any investigation into the commission of crime.
Branzburg v. Hayes, 408 U.S. 665 (1972).
Pennsylvania's Proposed Film Censorship Law - House Bill 1098, David C. Baldus
Pennsylvania's Proposed Film Censorship Law - House Bill 1098, David C. Baldus
Duquesne Law Review
The trend of Pennsylvania and United States Supreme Court decisions during the past decade has steadily reduced the number of lawful methods which Pennsylvania law enforcement officials may use to prevent the public exhibition of a motion picture they consider to be obscene. During the summer of 1965 in Allegheny County, for example, detectives attempted without success to halt the local showing of "Promises! Promises!," a film which they believed was legally obscene. The detectives secured a search warrant, seized the films and arrested the exhibitors, charging them with the crime of exhibiting an obscene motion picture. The officers apparently …
The Establishment Syndrome And Religious Liberty, John E. Dunsford
The Establishment Syndrome And Religious Liberty, John E. Dunsford
Duquesne Law Review
Seventeen years have passed since the Supreme Court chose the establishment clause of the First Amendment as the preferred reed through which to breathe modern relevance into an 18th century formulation of church-state relationships. Prior to 1947 the Court "had seldom undertaken to supply content to that part of the first amendment concerned with separation."' With the Everson decision, a period opened in which the commodious dimensions of the establishment concept invited the legal soul to trace out that grand design which presumably must distinguish and exalt the American understanding of the place of religion in society. Almost to a …